The Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29, became effective in 1995. Since then, the courts and parties to malpractice cases have been subjected to a never-ending flood of motions and appeals involving the AMS. The Appellate Division recently observed “This issue comes before this court with disturbing regularity and has been impervious to every attempt tried by our Supreme Court to avoid its recurrence.” Estate of Yearby v. Middlesex County, N.J. Super. (App. Div. 2018). Indeed, the New Jersey Supreme Court has considered the AMS 18 times, starting with In re Hall, 147 N.J. 379 (1997), through most recently, in A.T. v. Cohen, N.J. (2018), where Justice LaVecchia, writing for a unanimous court, mandated the implementation of new rules which may finally resolve the distractions presented by the AMS.

The relevant facts of A.T. were undisputed. The plaintiff’s child was born in 2011, and suffered a right brachial plexus injury during the delivery. The plaintiff’s counsel filed suit in 2013, asserting that the plaintiff’s child suffers from an Erb’s Palsy as a result of the defendants’ negligence. The defendants filed an answer on Dec. 5, 2013, and the AOM was therefore due on April 4, 2014. The trial court did not hold a Ferreira conference, and the plaintiff did not serve an AOM before the statutory deadline. On April 7, 2014, defendants filed a motion for summary judgment. On May 22, 2014, plaintiff served an AOM and counsel for plaintiff opposed the motion by admitting that the “failure to timely submit an AOM was due to counsel’s own oversight,” and cross-moving for a dismissal without prejudice.

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